Brown v DML Resources (No.3) [2001] NSWSC 719

Brown v DML Resources (No.3) [2001] NSWSC 719

The plaintiffs cannot proceed to seek orders for extension of time under s 588FF(3) against the BP companies without joining them as parties. However, as the time for making such an application has expired and joinder would be taken as the commencement date for the purpose of the limitation period, any such proceeding would be out of time. Therefore, the ex parte orders must be set aside so far as they affect the BP companies, the plaintiffs must pay the BP companies' costs of the application, and the proceeding as against the BP companies is doomed to fail.

Jurisdiction
Australia
Judgment Date
29 August 2001
Procedural Posture
Corporations Law Proceeding (liquidator's Application Under S 588 Ff) / Interlocutory Applications Regarding Extension of Time, Setting Aside Ex Parte Orders, and Joinder of Parties
Outcome
Ex parte orders of 4 September 2000 set aside as against BP companies; plaintiffs ordered to pay BP companies' costs; plaintiffs' application as against BP companies is doomed to fail. Further submissions to be received prior to final dismissal.
Legal Topics
['winding Up of Companies' 'unfair Preferences' 'extension of Time Under S 588 Ff(3)' 'joinder of Parties' 'natural Justice']
['corporations Law' 'civil Procedure'] ['winding Up of Companies' 'unfair Preferences' 'extension of Time Under S 588 Ff(3)' 'joinder of Parties' 'natural Justice']

Case Brief

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Procedural Posture

Corporations Law Proceeding (liquidator's Application Under S 588 Ff) / Interlocutory Applications Regarding Extension of Time, Setting Aside Ex Parte Orders, and Joinder of Parties

Legal Issues

  1. 1 ['Whether ex parte orders for extension of time under s 588FF(3) should be set aside for denial of natural justice' 'Whether BP companies must be joined as parties before relief can be sought against them' 'Whether the application for extension of time is out of time as against the BP companies under s 588FF(3)' 'Whether the Court should order joinder of BP companies on its own motion after the limitation period' 'Whether the Supreme Court Rules allow joinder after limitation expiry' 'Effect of Corporations Act transitional provisions on the proceedings']

Ratio Decidendi

The plaintiffs cannot proceed to seek orders for extension of time under s 588FF(3) against the BP companies without joining them as parties. However, as the time for making such an application has expired and joinder would be taken as the commencement date for the purpose of the limitation period, any such proceeding would be out of time. Therefore, the ex parte orders must be set aside so far as they affect the BP companies, the plaintiffs must pay the BP companies' costs of the application, and the proceeding as against the BP companies is doomed to fail.

Court Disposition

Ex parte orders of 4 September 2000 set aside as against BP companies; plaintiffs ordered to pay BP companies' costs; plaintiffs' application as against BP companies is doomed to fail. Further submissions to be received prior to final dismissal.

Orders

  • ['Orders 3 and 4 made on 4 September 2000 set aside insofar as they affect the BP applicants.' "Plaintiffs to pay the costs of the BP applicants' motion filed on 4 October 2000." 'Court to hear further submissions from plaintiffs (if any) as to why the proceeding should not be dismissed.']